Short and sweet today, Loyal Daily Dawg Readers.  A court in North Carolina was dealing with the common parental complaint that decisions at an IEP Team meeting (ARD in Texas) were “predetermined.”  The court made this observation:

Plaintiff’s evidence also fails to account for why, if the outcome was predetermined, the meeting turned into a multi-hour affair…..

It’s  Bouabid v. Charlotte Mecklenburg Schools BOE, decided by the federal court for the Western District of North Carolina on December 10, 2021.  It’s published in Special Ed Connection at 80 IDELR 44.

This case also has implications for Toolbox Tuesday—so tune in again tomorrow!

DAWG BONE: “PREDETERMINED” MEETINGS DON’T TAKE VERY LONG.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

Here’s an oldie but goodie:

Two guys were in a hot air balloon when they drifted way off course.  They dropped the balloon to about 75 feet and saw a man in overalls driving a tractor in a field. They got his attention and yelled: “Where are we?”  The man stopped the tractor, looked around, and responded: “Your’re about 75  feet straight overhead.”  They thanked him and went on. 

One man in the balloon turned to the other and observed, “Isn’t that just our luck?  Here we are lost, and the first guy we ask for help turns out to be an attorney at law!”  

His friend responded “A lawyer?  Why do you think that?  Looked like a farmer to me.”

“I know he looked like a farmer, but look at what just happened.  We asked him a question.  He gave us an answer.  I’m sure that his answer was completely accurate. And we are just as lost now as we were before we asked him.”

The other guy was skeptical. But when the travelers eventually found their way home, they also found a bill for $50, citing “Legal services rendered: assisted clients in ascertaining current status.” 

Have you heard any good ones lately?  The Dawg offers a free six-month extension of your subscription to the Loyal Daily Dawg Reader who sends me the best one I’ve never heard.  So don’t bother telling me about the difference between a lawyer and a catfish; or what to do with a lawyer buried in sand up to the neck; or what lawyers and sperm have in common; or why lab scientists now use lawyers instead of rats; or why lawyers are buried 12 feet down.  Heard ‘em all. 

Send your best lawyer jokes to jwalsh@wabsa.com.  Keep them clean—this is a family oriented publication.  And Happy April Fools Day!

DAWG BONE: WE LAWYERS ARE PROUD TO HAVE AN ENTIRE GENRE OF JOKES HONORING OUR PROFESSION. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Before I dive into the details of the 6^th Circuit’s recent Title IX decision, let’s make a few things clear. Title IX prohibits sex discrimination in schools.  Sexual harassment is a form of sex discrimination.  When a teacher sexually harasses a student, the school faces potential liability.  When a student sexually harasses a student, the school faces potential liability.

I’m confident that all Loyal Daily Dawg Readers understand all of that, but it bears repeating to put into context this recent decision.  The case arose when Jaycee Wamer, an undergraduate at the University of Toledo (UT) alleged that she had been sexually harassed by one of  UT’s instructors. She further alleged that UT prematurely dismissed her complaint without taking any action against the man.  This led her to change majors, avoid coming to campus, and switch to online classes to avoid her harasser.  She sued the university. 

The lower court dismissed her case because she did not allege that there was any additional harassment after she put the university on notice. In doing so, the lower court cited a 6^th Circuit case that was about student-to-student harassment.  That was a mistake.  In this case the 6^th Circuit held that the lower court goofed by applying to a teacher-on-student case the standards that apply to a student-to-student case.  

One reason the standards are different is because a case of sexual harassment under Title IX requires evidence that the harassment had an effect on the student’s education.  It’s designed to make sure that students are not excluded from or denied the benefits of education based on gender.  When students sexually harass other  students, it might have that effect. When a teacher harasses a student it almost certainly has that effect.  Key Quote:

When a teacher sexually harasses a student, it can more easily be presumed that the harassment would undermine and detract from the student’s educational experience because teachers are at the core of a student’s access to and experience of education. 

It’s Wamer v. University of Toledo, decided by the 6^th Circuit on March 2, 2022. It’s published at 2022 WL 611537.

DAWG BONE:  TITLE IX COORDINATORS TAKE NOTE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: April Fools!

It took the Texas Supreme Court 27 pages and 17 lengthy footnotes to explain what we all knew all along.  A “golf cart” is not a car.  I put “golf cart” in quotes because that’s what the court did in this opinion. 

This was a fight over insurance coverage.  The school district was sued by a student who alleged that she was thrown out of a golf cart that was driven recklessly by a school employee.  The district had insurance with the Texas Political Subdivisions Property/Casualty Joint Self Insurance Fund.  That Fund asserted that it was not responsible for defending the district on this claim because the policy covered “motor vehicles” and a “golf cart” is not a motor vehicle.

Well, it has a motor. And it will get you from here to there.  So is a “golf cart” a “motor vehicle”?

As usual with legal arguments, particularly those involving the fine print of an insurance contract, the definition of terms is crucial.  This policy covered injuries arising from the ownership, maintenance or use of a “covered auto.” 

What’s an “auto”?  The policy said it was “a land motor vehicle…designed for travel on public roads but does not include mobile equipment.”

What’s “mobile equipment”?  The policy said this term covers “bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads.”   

The case would have been simpler if the policy had specifically placed “golf cart” in the “auto” category or the “mobile equipment” category, but it didn’t. So the lawyers had a field day arguing over definitions. Our state’s highest court ultimately focused on one word in the policy:  “designed.” A golf cart might be driven on a public road, but it’s not designed for that. It’s designed to carry a golfer or two and their equipment around a golf course.  So a “golf cart” is not an “auto” and the Fund had no duty to defend the district from this claim. 

One more part of this case struck my fancy.  It introduced a new piece of legal jargon to me: “the eight-corners” rule.  What???  I remember well from law school the “four corners” rule. This is the rule that courts cite to explain that they will interpret a contract based only on what is contained in the document. If it’s not contained within the “four corners” of the written document, it’s not relevant.    In this case, the court based its decision on two written documents: the insurance policy and the Plaintiff’s complaint. Thus two documents, and eight corners.

The term “four corners” in legal cases also makes me think of college basketball, and since the Final Four is about to happen, let me explain.  I suspect that many Loyal Daily Dawg Readers are not old enough to remember college hoops before there was a shot clock. Back in those days the North Carolina Tar Heels employed an aggravating strategy devised by legendary coach Dean Smith. They called it the “four corners offense” but it was not much of an offense. It was a carefully choreographed game of “keep away” to be used to run out the clock when the Tar Heels had the lead.  Players would occupy the “four corners” of the court and toss the ball around while the clock ran down.  It worked. 

So that’s your history lesson for today. 

Today’s case is Pharr-San Juan-Alamo ISD v. Texas Political Subdivisions Property/Casualty Joint Self Insurance Fund, decided by the Texas Supreme Court on February 11, 2022.  It’s published at 2022 WL 420491.

DAWG BONE: READ THE FINE PRINT IN THE POLICY CAREFULLY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: new Title IX case from the 6^th Circuit

The 5^th Circuit has upheld a decision in favor of Wimberley ISD that involved an MDR (Manifestation Determination Review) after a contentious ARD meeting. It’s Gloria V. v. Wimberley ISD, 122 LRP 7827 (5^th Cir. 2022).  The 5^th Circuit did not explain itself. It just affirmed the lower court’s decision.  That decision was first summarized in the Daily Dawg on April 6, 2021. Since it provides a good analysis of how courts review MDR decisions, and since it has now been affirmed by the Circuit Court, I’m going to reprint that entry here.  For you Toolbox Types, this is a Tool #6 case. 

Here you go:

Quick question: what’s the difference between stealing a cookie and stealing an ATV (All Terrain Vehicle)?  Perhaps the first distinction that comes to mind is the value of the stolen item.  Criminal law would treat the ATV theft more seriously, since it has greater monetary value.  But a federal court made note of another distinction in the process of upholding the Manifestation Determination made by an ARD Committee in Wimberley ISD.  The court pointed out that a student who is plagued by impulsivity might very well grab that cookie without much thought.  Riding off in someone else’s ATV, on the other hand, requires a bit of stealthy planning.  Therefore, it’s less likely to be a product of impulsivity. 

ARD Committees often discuss impulsivity, especially with students who carry a diagnosis of Attention Deficit Disorder.  The argument is that the student does not think things through, does not anticipate consequences, does not plan.  The ARDC in Wimberley concluded that the student’s theft of the ATV required a level of premeditation that was inconsistent with “impulsivity.”    Members also observed that the district served many students with ADHD, and yet most of them did not steal things.  The ARDC’s conclusion was that this was not a manifestation of disability, nor the result of the failure of the district to implement the IEP.  The parent disagreed, and thus, litigation ensued.

The special education hearing officer ruled in favor of the district and now the federal district court has affirmed that decision.  The district handled this situation well. They had the right people at the meeting, they listened patiently as the student’s advocate engaged in what the court described as a lengthy and hostile cross-examination, they had a solid basis for their conclusions, and they were able to demonstrate that the DAEP would be able to provide an appropriate education to the student for his 45-day assignment.

In Toolbox terminology, this is a Tool #6 case: a Disciplinary Change of Placement.  The student was charged with felony theft. Even though this happened in the summer when school was out, Chapter 37 authorizes DAEP if the district determines that the student’s presence in regular classrooms would be “detrimental to the educational process.”  The district made those findings, properly handled the MDR and successfully defended its decision in the court case. I’m pleased to let you know that Kelly Janes and Jamie Turner of our firm’s Austin office represented the district on this one.  It’s Gloria V. v. Wimberley ISD, decided by the federal court for the Western District of Texas on February 26, 2021. The court’s decision is on SpecialEd Connection at 78 IDELR 96 and the magistrate’s Report and Recommendation is at 121 LRP 8057. 

DAWG BONE: THE DAWG HAS SNATCHED A COOKIE OR TWO…..IT WAS IMPULSIVE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow:  do you know what a golf cart is?

A Texas law prohibits governmental entities, like school districts, from issuing contracts to companies of a certain size unless the company promises not to boycott Israel. This law has been the subject of much litigation that the Dawg has reported.  The latest comes from a federal court in Houston. The suit was filed by A&R Engineering and Testing, a company that had been doing business with the City of Houston.  The owner of the company was a Palestinian who had grown up in the Gaza Strip.  He believed that Israel’s occupation of that territory was illegal, and he refused to contract away his right to say so, or to take economic action, such as a boycott, that would support his view.   He asked the court to declare the “don’t boycott Israel” law to be unconstitutional

The court’s decision is well reasoned and clear, and can best be summarized in a few bullet points. 

*The court held that a boycott, by itself, was not the kind of “expressive conduct” that is protected by the First Amendment.  A boycott is action, rather than words, and it would be difficult for anyone to know why the boycott is happening unless the boycott was accompanied with an explanation. So the court refused to shoot down the entire statute.

*However, the statute includes a “residual clause” that prohibits “any action intended to penalize, or inflict economic harm” on Israel.  The court held that this swept too broadly. The term “any action” could include picketing, giving speeches or encouraging others to boycott Israel. These are “expressive activities” that are protected by the First Amendment.  The court issued an injunction to prohibit the City of Houston from including the “residual clause” in any contract it offers to A&R Engineering.

*Because the record before the court was a bit skimpy, the court refused to grant a statewide injunction.  It limited the injunction to the particular plaintiff in this case and the particular contract he had with the City.  So the “residual clause” can be included in contracts issued by school districts.

It’s A&R Engineering and Testing, Inc. v. City of Houston, decided by the federal court for the Southern District of Texas on January 28, 2022.  It’s published at 2022 WL 267880.

DAWG BONE:  LOOK FOR MORE ON THIS ISSUE!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

LOYAL READERS! WE’RE ZOOMING WITH THE DAWG TODAY AT 10! ELVIN HOUSTON, ONE OF MY PARTNERS FROM SAN ANTONIO, WILL BE JOINING ME AS WE FOCUS ON SPECIAL ED ISSUES.  SO GET YOUR DIAGS AND DIRECTORS TO JOIN US! !  IF YOU ARE NOT YET SIGNED UP, JUST SEND AN EMAIL TO INFO@WABSA.COM. 

 “It does seem that the improper disclosure was inadvertent.  Nonetheless, we find that the District violated FERPA as alleged.”  So sayeth the Student Privacy Policy Office in a ruling involving a Texas school district.

The complaint alleged that Student A’s confidential information was copied onto the back of Student B’s ARD paperwork and sent to the parent of Student B.  Why would someone do that?  It sure sounds like the type of thing that could happen if someone was temporarily inattentive at the copy machine.  SPPO seems to agree with that, noting that the disclosure was likely “inadvertent.”  To SPPO it doesn’t matter.  The improper disclosure of confidential information is a FERPA violation, regardless of intent. 

That’s your Friday FERPA Reminder.  It’s Letter to Watson, issued by SPPO on June 24, 2021 and cited on Special Ed Connection at 121 LRP 32103.

DAWG BONE: INADVERTENT OR ADVERTENT.  NO MATTER.   

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

True confession: despite being a lawyer and understanding the significance of “the fine print” I routinely check the “Agree” box on numerous documents and websites without reading what I have just agreed to.  You can hardly navigate modern life in any other way.  You certainly can’t see a doctor. 

But an employment contract should be treated with more care.  Consider what happened in La Villa ISD.  Dr. Elizondo signed a contract with La Villa ISD that stated right at the top “Second Year Probationary Contract.”  He had completed his first probationary year, and was renewed for a second year. A second probationary year. 

At the end of that second year the board voted to terminate Dr. Elizondo’s service to the district. Since it was a probationary contract, the board did not have to offer Dr. Elizondo a hearing, but only had to give him timely notice, which the board did.  Just three days later Dr. Elizondo filed a grievance over this, asserting that the probationary contract was issued in mistake, and that he should have been on a term contract.  The board denied his grievance because it was untimely. 

How could it be untimely when he filed the grievance just three days after being notified of his termination? The board reasoned that Dr. Elizondo should have filed the grievance within 15 days of the date when he was offered the contract. After all, his complaint was that it was the wrong kind of contract. But it clearly said “Second Year Probationary Contract.”  The grievance policy, DGBA (Local) required that grievances be filed within 15 days “of the date when the employee first knew, or with reasonable diligence should have known, of the decision or action giving rise to the complaint or grievance.” Dr. Elizondo knew it was a probationary contract when it was presented to him, which was about a full year prior to the board’s decision to end his employment with the district.

The Commissioner agreed with the district on this one.  The grievance should have been filed within 15 days of the issuance of the contract.  By waiting a full year to grieve, Dr. Elizondo failed to comply with DGBA and his grievance was properly denied.

There was another reason for the decision in favor of the district. The Commissioner noted that Dr. Elizondo “waived his right to complain about the type of contract that Respondent issued him when he performed under that contract for a year and accepted its salary and benefits.” 

This one is Elizondo v. La Villa ISD, decided by the Commissioner on February 22, 2022.  It’s Docket No. 049-R10-07-2021. 

DAWG BONE: READ THE CONTRACT.  IF IT’S THE WRONG KIND, FILE A GRIEVANCE.  NOW.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow:  FERPA.

Yesterday I told you about the recent federal court decision holding that a Texas school district violated Child Find by not offering to conduct an evaluation of a high achieving student who was experiencing significant mental health issues. Despite that ruling, the court also held that the school did not fail to provide FAPE, and the parents were not entitled to recover attorneys’ fees. 

The court based the Child Find ruling on its belief that the school had enough information to justify a full evaluation. But that did not mean that the evaluation would demonstrate that the student qualified for special education services.   Moreover, in the due process hearing the parents bore the burden of proving that the student should have been declared eligible. They failed to do that. 

A lot of things happened in this case after the hearing officer’s decision, including evaluations of the student, but the court refused to consider any of that.  Following proper judicial protocol, the court based its decision on the evidence that was presented to the hearing officer. This was an appeal of the hearing officer’s decision, so it would be based only on the evidence presented to the hearing officer.

That’s where the parent’s case fell short.  They presented their own testimony along with an independent psychological evaluation that included a whole slew of instruments: a Wechsler Intelligence Scale, the Woodcock-Johnson, the BASC-3, Adolescent Parent Report, a Rorschach Inkblot Test, the MMPI, Million Adolescent Clinical Inventory, a Teenage Sentence Completion Exercise and a Substance Abuse Subtle Screening Inventory.  That’s a lot of testing, but the special education hearing officer found the resulting evaluation to be inaccurate and the court agreed:

Most importantly, the Hearing Officer concluded the Evaluation was not reliable or accurate because Dr. Kalenchak did not request or review C.B.’s education records from NEISD, did not review C.B.’s educational records from Pacific Quest [the residential facility where the student was served], and did not solicit information or other feedback from C.B.’s educators at NEISD or at Pacific Quest.  Further, Dr. Kasenchak did not review state assessment information because she did not consider C.B.’s academic proficiency relevant given the purpose of the Evaluation. Instead, Dr. Kasenchak assessed C.B.’s adaptive functioning by soliciting parent responses only.

That was not enough to move the needle, not enough to satisfy the burden of proof. Moreover, on the issue of “educational need” the district provided excellent testimony that the court described as “the most compelling evidence.”  Guess where that came from.  Teachers!!

C.B.’s English teacher testified that she did not observe C.B. have any panic attacks, C.B. was never disruptive in class, did not exhibit difficulty in performing daily tasks in a safe and efficient manner, never had difficulty controlling her behavior and mood, or difficulty making friends, and she never observed any instances of self-harm. 

C.B.’s Theatre teacher stated C.B. thrived in her class, as she was very interested and passionate about the subject.  For these reasons, C.B. performed well academically. C.B. did not exhibit any panic attacks, trouble breathing, or physiological symptoms of anxiety,  but instead exhibited excitement and strong interest in the class and in her assigned duties.  C.B. was never disruptive in theatre, did not have problems performing daily tasks in a safe and efficient manner, did not have difficulty controlling her behavior, and had many different types of friends in the theater department. 

There was more of this from the Pre-AP Algebra teacher, leading the court to summarize:

The evidence of testimony from C.B.’s teachers presents a more reliable perspective of C.B.s academic proficiency at the relevant time…and presents a picture of her ability to function in an educational setting at that time.

So there was insufficient evidence of an “educational need” meaning that the student was not eligible for services, meaning that the district did not fail to provide FAPE because the student was not entitled to FAPE.

The other issue in the case was about attorneys’ fees. Recall that the parents prevailed on the issue of Child Find when the court ruled that the district should have conducted its own evaluation of the student.  Normally, parents who prevail on a significant issue are entitled to recover some of their attorneys’ fees, even if they lost on other issues. So why not here?

Because attorneys’ fees can only be awarded to the prevailing party who is the parent of a “child with a disability.”  The court held that C.B. was not a “child with a disability.” The evidence did not show that she needed special education. Since she was not eligible, she was not a “child with a disability” and the court could not award attorneys’ fees even if it wanted to. 

It’s C.B. v. North East ISD, decided by the federal court for the Western District of Texas on February 16, 2022.  It’s reported in Special Ed Connection at 122 LRP 6123.

DAWG BONE: TESTIMONY FROM TEACHERS IS OFTEN “THE MOST COMPELLING EVIDENCE.”

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: When to file a grievance….

I would guess that every district in Texas has a student like C.B.  She sailed through elementary and middle school with high grades, was identified as “gifted and talented” and took a number of advanced classes in high school.  But there was another side to her story.  She was seeing a psychiatrist and taking medication as early as second grade, and the diagnoses advanced through the years from ADHD to Generalized Anxiety Disorder to Major Depressive Disorder. A very bright student with significant mental health issues.  What is the role of special education for a student like this? 

During her 10^th grade year, C.B.’s parents placed her in a residential facility in Hawaii for three months, followed by a second placement in Utah for two months.  This was based on “self-injurious thoughts and suicidal ideation.”  The local school district was aware of this. But based on the student’s strong academic performance, the input of the teachers who knew her, and her robust intelligence, the district did not initiate an effort to evaluate C.B. for special education services.  Was that a violation of the district’s Child Find obligation?

The administrative hearing officer said that it was, and the federal district court has now affirmed that decision.  This turned out to be a harmless error by the school district, for reasons I will explain later.  For today’s Daily Dawg, and in light of it being Toolbox Tuesday, we’re just going to focus on how the court handled the Child Find issue.

Loyal Daily Dawg Readers know well that a student’s eligibility for special education turns on two factors: the student has  to have a disability AND the student has to show a need for specially designed instruction. In this case the school was well aware of the possibility that the student had conditions that might meet the definition of one or more of IDEA’s categories of disability. But there seemed to be no “educational need.”  Here’s how the court addressed that:

NEISD contends any failure to suspect  C.B. should be evaluated is excused by evidence of her superior intelligence and high academic achievement and performance.  Because C. B. always possessed superior intelligence and always maintained high academic performance, even with ADHD, her increased anxiety, and her extended absence due to treatment, NEISD contends it did not have reason to suspect she needed evaluation for special education services. 

The Court finds no merit or support for this contention. 

Really??? “No merit” to this argument?  There is plenty of merit to the contention that a student has to demonstrate a need for special services. But this court emphasizes two factors that we all need to remember when we think about Child Find.  First, it’s not all about academics:

These Child Find and FAPE obligations are not relieved or obviated by a student’s high intelligence or high academic performance.

The school district must not focus solely upon the student’s academic performance, but upon a holistic view of the student’s behavior, academic performance, and other indications.

Second, the focus should be on this particular student’s history:

Of particular importance, the more accurate barometer to respond to a student’s unique needs is to determine whether the student is experiencing academic decline or academic difficulties unusual for that student.  (Emphasis added).

This is the type of court decision that likely drives special education directors up the wall.  My guess is that if this same fact situation was presented to ten federal judges, they would split right down the middle, half throwing a penalty flag for a Child Find violation, and half not doing so.  We lawyers can always play it safe by suggesting that “when in doubt, offer an evaluation.” 

That is the safe approach.  And I am a lawyer, so I’m going to say it: when in doubt, offer an evaluation.

Despite this ruling against the district, the case turned out just fine for the district.  To understand why, tune in tomorrow!

It’s C.B. v. North East ISD, decided by the federal court for the Western District of Texas on February 16, 2022.  It’s reported in Special Ed Connection at 122 LRP 6123.

DAWG BONE: “EDUCATIONAL NEED” IS ABOUT MORE THAN ACADEMICS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: As Paul Harvey used to say, “the rest of the story….”